HR Daily

Forced mediation "risky and unfair"

21 March 2017 4:37pm

Mediation following sexual harassment complaints might be necessary to ensure employees understand appropriate behaviour and communication in the workplace, but it can be risky to force parties to be involved, an investigations specialist warns.

His comments follow reports in the Sydney Morning Herald that a senior executive for BT Financial Group, Westpac's wealth management division, is alleged to have sexually harassed two female employees.

The employees claimed Martyn Wild made comments about a female employee's appearance and weight retarding her career prospects, taunted one of the complainants about her weight and hair colour, and made unwanted physical contact.

Senior managers allegedly became aware of the allegations shortly before Christmas 2016, and began a formal investigation in mid-January, ultimately issuing Wild with a formal first and final warning, and requiring him to apologise to his team.

BT has attempted to conduct mediation with the parties, the SMH report says, but the complainants are reluctant to be involved.

A BT spokesperson told HR Daily they couldn't discuss specific employee issues due to privacy reasons, but that when allegations do occur, "we take them very seriously and they will be reviewed internally and where necessary by an external party".

"BT Financial Group does not condone inappropriate or unlawful behaviour. We require all of our employees to comply with the policies outlined in our 'code of conduct' and to act responsibly and with integrity," the spokesperson said.

Approach mediation with caution

In some circumstances it might be necessary to explore mediation with parties involved in sexual harassment complaints, regardless of whether those allegations are proven, Worklogic director Grevis Beard told HR Daily.

This is so employers can (re)establish what appropriate and normal workplace communication and behaviour are, he says, adding it might be necessary to provide the alleged perpetrator with remedial training if the allegations are proven.

However, Beard says, "mediations only work if parties are prepared to fully co-operate in the process and genuinely wish to resolve the issues through reaching an agreement between them", and he stresses that there is "little point in forcing mediations onto parties if they are not willing to be involved".

"Even if mediation is, for example, part of an EBA or an organisation's misconduct resolution process, it is both risky and unfair for an employer to force parties to participate... This is particularly so if the circumstances of the case involve behaviours which are serious and include any risk to health, safety or wellbeing."

If employees are put off by the idea of a "formal mediation", it can be "very helpful" to refer to it as a facilitation instead, Beard says.

It can also help to ask the parties what their concerns are to ensure relevant support is available, and engaging an external mediator or facilitator can make them feel more comfortable participating.

"Depending on the nature of what is alleged, and found proven, it may be that there needs to be more attention to supporting individuals to participate, and it may be that a visible show of support for the mediation process 'from the top' can help with this. Support persons and [an employee assistance program] should be offered for any mediation process, particularly one involving sexual harassment."

Beard notes that mediation will help foster professional accountability, but it won't fix a "possible widespread culture of sexism in the workplace".

"It may be strategic for the organisation to consider a workplace culture review if the proven (or even perceived) sexual harassment is 'the tip of the iceberg'.

"To undertake a broader culture review of the workplace, there needs to be acceptance 'from the top' that cultural change may be needed, and using a review is a great way to commence this journey.

"Reliance on the idea that 'we are all fine here' because we only receive a few formal complaints each year is a dangerous approach to managing people risk."

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